The outrage on the twitters was palpable. Imagine docs performing non-consensual hysterectomies on immigration detainees? It had to be true, because all the woke activists on twitter were going nuts over it, so one more activist decided he would join in the frenzy.
As Judge James Lorenz noted in Mahendra v. Winslow, Winslow had about 60,000 followers on twitter and the plaintiff, “Dr” Mahndra Amin, was a physician who performed a total of two hysterectomies, medically necessary, reviewed and approved by a nurse and a second physician, and otherwise neither a public figure or a bad dude.
Tough, nuts. Winslow, the best selling New York Times author and renowned bon vivant and flaming progressive nutjob, was expressing his opinion to save the world and, well, you have to break some eggs when you make a woke omelet, you know. And when you’re on a roll for justice, who has time to check out the details. After all, it was all over his echo chamber on twitter and the 60 Million Fly Rule* kicked in.
Five days before the Contested Tweet, it was revealed that the allegations about Plaintiff were not based on first-hand accounts, and ICDC (in addition to the hospital) confirmed Plaintiff only performed two hysterectomies on ICDC patients.
But wasn’t it fair to make Dr. Mahendra that poster boy for prison butchers?
Here, Plaintiff worked as a contractor at ICDC. He provided medical treatment after receiving informed consent from the detainees and approval from the Department of Homeland Security, which required review from a nurse and an independent doctor. There are no allegations to show Plaintiff had “substantial responsibility for or control over the conduct of governmental affairs,” including control over the detainees or official policies (e.g., what treatments detainees were able to receive). There is also nothing in the pleadings to suggest Plaintiff enjoyed “significantly greater access to the channels of effective communication and hence [had] a more realistic opportunity to counteract false statements than private individuals normally enjoy.”
In other words, Dr. Mahendra was just some random doc doing his medical job on a couple of patients. He wasn’t in charge of the government’s covert butchering of poor brown women people with uteri in immigration jail, but just a guy who was asked to provide medical care to two female prisoners in medical need. No element of malice required, though it might not be too hard to show.
Winslow initially argues that his twit was merely opinion, and when it comes to his disgracefully calling Dr. Mahendra a butcher, that’s accurate. But when it comes to “illegal” hysterectomies and “horrible crime,” it’s not opinion and those are assertions of fact that can be disproven. To cover his hysterics, Winslow offers three alternative arguments.
Defendant argues the Court should consider his earlier tweets. It is reasonable to infer the Contested Tweet, when appearing on Twitter users’ feeds, would not have been presented at the same time as Defendant’s earlier tweets. Therefore, even if it would be appropriate to consider the other tweets (which are not in the complaint or relied upon in it), they would not alter the above analysis at this stage.
Context is a curiosity these days, rejected when it blunts the force of outrage while embraced when it makes the crazy and deceitful appear less full of shit. And yet, the court noted that while the defamatory twit must be viewed in context (although there was nothing included in the defendant’s answer about what these other twits said or how they changes the clear libel of the butcher twit), the libelous twit is more than sufficient to overcome dismissal.
Defendant also relies on the assertion that his followers have known any tweet of his was simply an opinion. But it is unclear from the record that only Defendant’s followers saw the Contested Tweet. It is reasonable to infer, which the Court must do in Plaintiff’s favor, that non-followers saw the Contested Tweet in their feed, based on the more than 9,000 retweets of the Contested Tweet.
This is the “everybody knows I’m full of shit and not to believe anything I say” defense.
Further, Defendant argues Twitter is known as a forum for expressing opinions about controversial issues, and therefore any reader would know Defendant’s statements were only an opinion. This argument is rejected because it is reasonable to infer that, in addition to opinions, Twitter users may tweet verifiable, objective facts. Lastly, Defendant cites the heated public debate over immigration policy and treatment of detainees that was occurring when he posted the Contested Tweet. But that context does not alter Defendant’s assertion of fact as to Plaintiff’s criminal conduct.
Believe nothing on twitter is an excellent general rule, but not one the law recognizes.
The abject carelessness with which “big” accounts like Winslow’s destroy individuals who have done nothing to deserve ruin, and indeed may be good and virtuous people but for the rush to baseless condemnation on social media, is appalling. Whether it’s for a chuckle or to throw red meat and bolster one’s outrage bona fides to the million no-name gnats who make people like Winslow feel relevant, the human fodder of their inanity are nothing more than collateral damage in their quest for self-aggrandizement.
This is the rare case where the defendant is a person of sufficient substance that he can be sued with some expectation of recovery, and where his damaging twit included an assertion of fact so that poor “Dr” Mahendra wasn’t ruined without recourse because he was only called a butcher. Most of the victims of woke hysteria have no one to sue and nowhere to turn. Their lives may be ruined, but it’s just another sacrifice for the cause.
H/T Volokh
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